OPINION OF THE COURT
HARRINGTON V. RICHTER
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-587
KELLY HARRINGTON, WARDEN, PETITIONER
v.
JOSHUA RICHTER
on writ of certiorari to the united states court of
appeals for the ninth circuit
[January 19, 2011]
Justice Kennedy delivered the
opinion of the Court.
The writ of habeas corpus stands
as a safeguard against imprisonment of those held in violation of
the law. Judges must be vigilant and independent in reviewing
petitions for the writ, a commitment that entails substantial
judicial resources. Those resources are diminished and misspent,
however, and confidence in the writ and the law it vindicates
undermined, if there is judicial disregard for the sound and
established principles that inform its proper issuance. That
judicial disregard is inherent in the opinion of the Court of
Appeals for the Ninth Circuit here under review. The Court of
Appeals, in disagreement with the contrary conclusions of the
Supreme Court of the State of California and of a United States
District Court, ordered habeas corpus relief granted to set aside
the conviction of Joshua Richter, respondent here. This was clear
error.
Under 28 U. S. C. §2254(d), the availability
of federal habeas relief is limited with respect to claims
previously “adjudicated on the merits” in state-court proceedings.
The first inquiry this case presents is whether that pro-vision
applies when state-court relief is denied without an accompanying
statement of reasons. If it does, the question is whether the Court
of Appeals adhered to the statute’s terms, in this case as it
relates to ineffective-assistance claims judged by the standard set
forth in
Strickland v.
Washington,
466 U. S. 668 (1984). A
second case decided today,
Premo v.
Moore,
post, p. ___, presents similar issues. Here, as in that
case, it is necessary to reverse the Court of Appeals for failing
to accord required deference to the decision of a state court.
I
It is necessary to begin by
discussing the details of a crime committed more than a decade and
a half ago.
A
Sometime after midnight on
December 20, 1994, sheriff’s deputies in Sacramento County,
California, arrived at the home of a drug dealer named Joshua
Johnson. Hours before, Johnson had been smoking marijuana in the
company of Richter and two other men, Christian Branscombe and
Patrick Klein. When the deputies arrived, however, they found only
Johnson and Klein. Johnson was hysterical and covered in blood.
Klein was lying on a couch in Johnson’s living room, unconscious
and bleeding. Klein and Johnson each had been shot twice. Johnson
recovered; Klein died of his wounds.
Johnson gave investigators this
account: After falling asleep, he awoke to find Richter and
Branscombe in his bedroom, at which point Branscombe shot him.
Johnson heard more gunfire in the living room and the sound of his
assailants leaving. He got up, found Klein bleeding on the living
room couch, and called 911. A gun safe, a pistol, and $6,000 cash,
all of which had been in the bedroom, were missing.
Evidence at the scene corroborated Johnson’s
account. Investigators found spent shell casings in the bedroom
(where Johnson said he had been shot) and in the living room (where
Johnson indicated Klein had been shot). In the living room there
were two casings, a .32 caliber and a .22 caliber. One of the
bullets recovered from Klein’s body was a .32 and the other was a
.22. In the bedroom there were two more casings, both .32 caliber.
In addition detectives found blood spatter near the living room
couch and bloodstains in the bedroom. Pools of blood had collected
in the kitchen and the doorway to Johnson’s bedroom. Investigators
took only a few blood samples from the crime scene. One was from a
blood splash on the wall near the bedroom doorway, but no sample
was taken from the doorway blood pool itself.
Investigators searched Richter’s residence and
found Johnson’s gun safe, two boxes of .22-caliber ammunition, and
a gun magazine loaded with cartridges of the same brand and type as
the boxes. A ballistics expert later concluded the .22-caliber
bullet that struck Klein and the .22-caliber shell found in the
living room matched the ammunition found in Richter’s home and bore
markings consistent with the model of gun for which the magazine
was designed.
Richter and Branscombe were arrested. At first
Richter denied involvement. He would later admit taking Johnson’s
pistol and disposing of it and of the .32-caliber weapon Branscombe
used to shoot Johnson and Klein. Richter’s counsel produced
Johnson’s missing pistol, but neither of the guns used to shoot
Johnson and Klein was found.
B
Branscombe and Richter were tried
together on charges of murder, attempted murder, burglary, and
robbery. Only Richter’s case is presented here.
The prosecution built its case on
Johnson’s testimony and on circumstantial evidence. Its opening
statement took note of the shell casings found at the crime scene
and the ammunition and gun safe found at Richter’s residence.
Defense counsel offered explanations for the circumstantial
evidence and derided Johnson as a drug dealer, a paranoid, and a
trigger-happy gun fanatic who had drawn a pistol on Branscombe and
Richter the last time he had seen them. And there were
inconsistencies in Johnson’s story. In his 911 call, for instance,
Johnson first said there were four or five men who had broken into
his house, not two; and in the call he did not identify Richter and
Branscombe among the intruders.
Blood evidence does not appear to have been
part of the prosecution’s planned case prior to trial, and
investigators had not analyzed the few blood samples taken from the
crime scene. But the opening statement from the defense led the
prosecution to alter its approach. Richter’s attorney outlined the
theory that Branscombe had fired on Johnson in self-defense and
that Klein had been killed not on the living room couch but in the
crossfire in the bedroom doorway. Defense counsel stressed
deficiencies in the investigation, including the absence of
forensic support for the prosecution’s version of events.
The prosecution took steps to adjust to the
counterattack now disclosed. Without advance notice and over the
objection of Richter’s attorney, one of the detectives who
investigated the shootings testified for the prosecution as an
expert in blood pattern evidence. He concluded it was unlikely
Klein had been shot outside the living room and then moved to the
couch, given the patterns of blood on Klein’s face, as well as
other evidence including “high velocity” blood spatter near the
couch consistent with the location of a shooting. The prosecution
also offered testimony from a serologist. She testified the blood
sample taken near the pool by the bedroom door could be Johnson’s
but not Klein’s.
Defense counsel’s cross-examination probed
weaknesses in the testimony of these two witnesses. The detective
who testified on blood patterns acknowledged that his inferences
were imprecise, that it was unlikely Klein had been lying down on
the couch when shot, and that he could not say the blood in the
living room was from either of Klein’s wounds. Defense counsel
elicited from the serologist a concession that she had not tested
the bedroom blood sample for cross-contamination. She said that if
the year-old sample had degraded, it would be difficult to tell
whether blood of Klein’s type was also present in the sample.
For the defense, Richter’s attorney called
seven witnesses. Prominent among these was Richter himself. Richter
testified he and Branscombe returned to Johnson’s house just before
the shootings in order to deliver something to one of Johnson’s
roommates. By Richter’s account, Branscombe entered the house alone
while Richter waited in the driveway; but after hearing screams and
gunshots, Richter followed inside. There he saw Klein lying not on
the couch but in the bedroom doorway, with Johnson on the bed and
Branscombe standing in the middle of the room. According to
Richter, Branscombe said he shot at Johnson and Klein after they
attacked him. Other defense witnesses provided some corroboration
for Richter’s story. His former girlfriend, for instance, said she
saw the gun safe at Richter’s house shortly before the
shootings.
The jury returned a verdict of guilty on all
charges. Richter was sentenced to life without parole. On appeal,
his conviction was affirmed.
People v.
Branscombe, 72 Cal. Rptr. 2d 773 (Cal. App. 1998)
(officially depublished). The California Supreme Court denied a
petition for review,
People v.
Branscombe, No.
S069751, 1998 Cal. LEXIS 4252 (June 24, 1998), and Richter did not
file a petition for certiorari with this Court. His conviction
became final.
C
Richter later petitioned the
California Supreme Court for a writ of habeas corpus. He asserted a
number of grounds for relief, including ineffective assistance of
counsel. As relevant here, he claimed his counsel was deficient for
failing to present expert testimony on serology, pathology, and
blood spatter patterns, testimony that, he argued, would disclose
the source of the blood pool in the bedroom doorway. This, he
contended, would bolster his theory that Johnson had moved Klein to
the couch.
He offered affidavits from three
types of forensic experts. First, he provided statements from two
blood serologists who said there was a possibility Klein’s blood
was intermixed with blood of Johnson’s type in the sample taken
from near the pool in the bedroom doorway. Second, he provided a
statement from a pathologist who said the blood pool was too large
to have come from Johnson given the nature of his wounds and his
own account of his actions while waiting for the police. Third, he
provided a statement from an expert in bloodstain analysis who said
the absence of “a large number of satellite droplets” in
photographs of the area around the blood in the bedroom doorway was
inconsistent with the blood pool coming from Johnson as he stood in
the doorway. App. 118. Richter argued this evidence established the
possibility that the blood in the bedroom doorway came from Klein,
not Johnson. If that were true, he argued, it would confirm his
account, not Johnson’s. The California Supreme Court denied
Richter’s petition in a one-sentence summary order. See
In re
Richter, No. S082167 (Mar. 28, 2001), App. to Pet. for Cert.
22a. Richter did not seek certiorari from this Court.
After the California Supreme Court issued its
summary order denying relief, Richter filed a petition for habeas
corpus in United States District Court for the Eastern District of
California. He reasserted the claims in his state petition. The
District Court denied his petition, and a three-judge panel of the
Court of Appeals for the Ninth Circuit affirmed. See
Richter v.
Hickman, 521 F. 3d 1222 (2008).
The Court of Appeals granted rehearing en banc and reversed the
District Court’s decision. See
Richter v.
Hickman, 578 F. 3d 944 (2009).
As a preliminary matter, the Court of Appeals
questioned whether 28 U. S. C. §2254(d) was applicable to
Richter’s petition, since the California Supreme Court issued only
a summary denial when it rejected his
Strickland claims;
but it determined the California decision was unreasonable in any
event and that Richter was entitled to relief. The court held
Richter’s trial counsel was deficient for failing to consult
experts on blood evidence in determining and pursuing a trial
strategy and in preparing to rebut expert evidence the prosecution
might—and later did—offer. Four judges dissented from the en banc
decision.
We granted certiorari. 559 U. S. ___
(2010).
II
The statutory authority of
federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U. S. C. §2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The
text of §2254(d) states:
“An application for a writ of
habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
“(1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or
“(2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”
As an initial matter, it is necessary to decide
whether §2254(d) applies when a state court’s order is
unaccompanied by an opinion explaining the reasons relief has been
denied.
By its terms §2254(d) bars relitigation of any
claim “adjudicated on the merits” in state court, subject only to
the exceptions in §§2254(d)(1) and (d)(2). There is no text in the
statute requiring a statement of reasons. The statute refers only
to a “decision,” which resulted from an “adjudication.” As every
Court of Appeals to consider the issue has recognized, determining
whether a state court’s decision resulted from an unreasonable
legal or factual conclusion does not require that there be an
opinion from the state court explaining the state court’s
reasoning. See
Chadwick v.
Janecka, 312
F. 3d 597, 605–606 (CA3 2002);
Wright v.
Secretary for Dept. of Corrections, 278 F. 3d 1245,
1253–1254 (CA11 2002);
Sellan v.
Kuhlman, 261
F. 3d 303, 311–312 (CA2 2001);
Bell v.
Jarvis, 236 F. 3d 149, 158–162 (CA4 2000) (en banc);
Harris v.
Stovall, 212 F. 3d 940, 943,
n. 1 (CA6 2000);
Aycox v.
Lytle, 196
F. 3d 1174, 1177–1178 (CA10 1999);
James v.
Bowersox, 187 F. 3d 866, 869 (CA8 1999). And as this
Court has observed, a state court need not cite or even be aware of
our cases under §2254(d).
Early v.
Packer,
537 U. S. 3, 8
(2002)
(per curiam). Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for the
state court to deny relief. This is so whether or not the state
court reveals which of the elements in a multipart claim it found
insufficient, for §2254(d) applies when a “claim,” not a component
of one, has been adjudicated.
There is no merit to the assertion that
compliance with §2254(d) should be excused when state courts issue
summary rulings because applying §2254(d) in those cases will
encourage state courts to withhold explanations for their
decisions. Opinion-writing practices in state courts are influenced
by considerations other than avoiding scrutiny by collateral attack
in federal court. Cf.
In re Robbins, 18 Cal. 4th 770,
778, n. 1, 959 P. 2d 311, 316, n. 1 (1998) (state
procedures limiting habeas are “a means of protecting the integrity
of our own appeal and habeas corpus process,” rather than a device
for “insulating our judgments from federal court review” (emphasis
deleted)). At the same time, requiring a statement of reasons could
undercut state practices designed to preserve the integrity of the
case-law tradition. The issuance of summary dispositions in many
collateral attack cases can enable a state judiciary to concentrate
its resources on the cases where opinions are most needed. See
Brief for California Attorneys for Criminal Justice et al. as
Amici Curiae 8 (noting that the California Supreme Court
disposes of close to 10,000 cases a year, including more than 3,400
original habeas corpus petitions).
There is no merit either in Richter’s argument
that §2254(d) is inapplicable because the California Supreme Court
did not say it was adjudicating his claim “on the merits.” The
state court did not say it was denying the claim for any other
reason. When a federal claim has been presented to a state court
and the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary.
Cf.
Harris v.
Reed,
489 U. S. 255, 265
(1989) (presumption of a merits determination when it is unclear
whether a decision appearing to rest on federal grounds was decided
on another basis).
The presumption may be overcome when there is
reason to think some other explanation for the state court’s
decision is more likely. See,
e.g.,
Ylst v.
Nunnemaker,
501 U. S. 797, 803
(1991). Richter, however, does not make that showing. He mentions
the theoretical possibility that the members of the California
Supreme Court may not have agreed on the reasons for denying his
petition. It is pure speculation, however, to suppose that happened
in this case. And Richter’s assertion that the mere possibility of
a lack of agreement prevents any attribution of reasons to the
state court’s decision is foreclosed by precedent. See
ibid.
As has been noted before, the California
courts or Legislature can alter the State’s practices or elaborate
more fully on their import. See
Evans v.
Chavis,
546 U. S. 189,
197, 199 (2006). But that has not occurred here. This Court now
holds and reconfirms that §2254(d) does not require a state court
to give reasons before its decision can be deemed to have been
“adjudicated on the merits.” Richter has failed to show that the
California Supreme Court’s decision did not involve a determination
of the merits of his claim. Section 2254(d) applies to his
petition.
III
Federal habeas relief may not be
granted for claims subject to §2254(d) unless it is shown that the
earlier state court’s decision “was contrary to” federal law then
clearly established in the holdings of this Court, §2254(d)(1);
Williams v.
Taylor,
529 U. S. 362, 412
(2000); or that it “involved an unreasonable application of” such
law, §2254(d)(1); or that it “was based on an unreasonable
determination of the facts” in light of the record before the state
court, §2254(d)(2).
The Court of Appeals relied on the second of
these exceptions to §2254(d)’s relitigation bar, the exception in
§2254(d)(1) permitting relitigation where the earlier state
decision resulted from an “unreasonable application of” clearly
established federal law. In the view of the Court of Appeals, the
California Supreme Court’s decision on Richter’s
ineffective-assistance claim unreasonably applied the holding in
Strickland. The Court of Appeals’ lengthy opinion,
however, discloses an improper understanding of §2254(d)’s
unreasonableness standard and of its operation in the context of a
Strickland claim.
The pivotal question is whether
the state court’s application of the
Strickland standard
was unreasonable. This is different from asking whether defense
counsel’s performance fell below
Strickland’s standard.
Were that the inquiry, the analysis would be no different than if,
for example, this Court were adjudicating a
Strickland
claim on direct review of a criminal conviction in a United States
district court. Under AEDPA, though, it is a necessary premise that
the two questions are different. For purposes of §2254(d)(1), “an
unreasonable application of federal law is different from
an
incorrect application of federal law.”
Williams,
supra, at 410. A state court must be
granted a deference and latitude that are not in operation when the
case involves review under the
Strickland standard
itself.
A state court’s determination that a claim
lacks merit precludes federal habeas relief so long as “fairminded
jurists could disagree” on the correctness of the state court’s
decision.
Yarborough v.
Alvarado,
541 U. S. 652, 664
(2004). And as this Court has explained, “[E]valuating whether a
rule application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway courts have
in reaching outcomes in case-by-case determinations.”
Ibid. “[I]t is not an unreasonable application of clearly
established Federal law for a state court to decline to apply a
specific legal rule that has not been squarely established by this
Court.”
Knowles v.
Mirzayance, 556 U. S. ___, ___
(2009) (slip op., at 9–10) (internal quotation marks omitted).
Here it is not apparent how the Court of
Appeals’ analysis would have been any different without AEDPA. The
court explicitly conducted a
de novo review, 578
F. 3d, at 952; and after finding a
Strickland
violation, it declared, without further explanation, that the
“state court’s decision to the contrary constituted an unreasonable
application of
Strickland.” 578 F. 3d, at 969. AEDPA
demands more. Under §2254(d), a habeas court must determine what
arguments or theories supported or, as here, could have supported,
the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of
this Court. The opinion of the Court of Appeals all but ignored
“the only question that matters under §2254(d)(1).”
Lockyer v.
Andrade,
538 U. S. 63, 71
(2003).
The Court of Appeals appears to have treated
the unreasonableness question as a test of its confidence in the
result it would reach under
de novo review: Because the
Court of Appeals had little doubt that Richter’s
Strickland claim had merit, the Court of Appeals concluded
the state court must have been unreasonable in rejecting it. This
analysis overlooks arguments that would otherwise justify the state
court’s result and ignores further limitations of §2254(d),
including its requirement that the state court’s decision be
evaluated according to the precedents of this Court. See
Renico v.
Lett, 559 U. S. ___, ___ (2010) (slip
op., at 11–12). It bears repeating that even a strong case for
relief does not mean the state court’s contrary conclusion was
unreasonable. See
Lockyer,
supra, at 75.
If this standard is difficult to meet, that is
because it was meant to be. As amended by AEDPA, §2254(d) stops
short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings. Cf.
Felker
v.
Turpin,
518 U. S. 651, 664
(1996) (discussing AEDPA’s “modified res judicata rule” under
§2244). It preserves authority to issue the writ in cases where
there is no possibility fairminded jurists could disagree that the
state court’s decision conflicts with this Court’s precedents. It
goes no farther. Section 2254(d) reflects the view that habeas
corpus is a “guard against extreme malfunctions in the state
criminal justice systems,” not a substitute for ordinary error
correction through appeal.
Jackson v.
Virginia,
443 U. S. 307,
332, n. 5 (1979) (Stevens, J., concurring in judgment). As a
condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.
The reasons for this approach are familiar.
“Federal habeas review of state convictions frustrates both the
States’ sovereign power to punish offenders and their good-faith
attempts to honor constitutional rights.”
Calderon v.
Thompson,
523 U. S. 538, 555–556
(1998) (internal quotation marks omitted). It “disturbs the State’s
significant interest in repose for concluded litigation, denies
society the right to punish some admitted offenders, and intrudes
on state sovereignty to a degree matched by few exercises of
federal judicial authority.”
Reed, 489 U. S., at 282
(Kennedy, J., dissenting).
Section 2254(d) is part of the basic structure
of federal habeas jurisdiction, designed to confirm that state
courts are the principal forum for asserting constitutional
challenges to state convictions. Under the exhaustion requirement,
a habeas petitioner challenging a state conviction must first
attempt to present his claim in state court. 28 U. S. C.
§2254(b)
. If the state court rejects the claim on
procedural grounds, the claim is barred in federal court unless one
of the exceptions to the doctrine of
Wainwright v.
Sykes,
433
U. S. 72, 82–84 (1977), applies. And if the state court denies
the claim on the merits, the claim is barred in federal court
unless one of the exceptions to §2254(d) set out in §§2254(d)(1)
and (2) applies. Section 2254(d) thus complements the exhaustion
requirement and the doctrine of procedural bar to ensure that state
proceedings are the central process, not just a preliminary step
for a later federal habeas proceeding, see
id., at 90.
Here, however, the Court of Appeals gave
§2254(d) no operation or function in its reasoning. Its analysis
illustrates a lack of deference to the state court’s determination
and an improper intervention in state criminal processes, contrary
to the purpose and mandate of AEDPA and to the now well-settled
meaning and function of habeas corpus in the federal system.
IV
The conclusion of the Court of
Appeals that Richter demonstrated an unreasonable application by
the state court of the
Strickland standard now must be
discussed. To have been entitled to relief from the California
Supreme Court, Richter had to show both that his counsel provided
deficient assistance and that there was prejudice as a result.
To establish deficient
performance, a person challenging a conviction must show that
“counsel’s representation fell below an objective standard of
reasonableness.” 466 U. S., at 688. A court considering a claim of
ineffective assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range” of reasonable
professional assistance.
Id., at 689. The challenger’s
burden is to show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.”
Id., at 687.
With respect to prejudice, a challenger must
demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Id., at 694. It is
not enough “to show that the errors had some conceivable effect on
the outcome of the proceeding.”
Id., at 693. Counsel’s
errors must be “so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Id., at 687.
“Surmounting
Strickland’s high bar is
never an easy task.”
Padilla v.
Kentucky, 559 U.
S. ___, ___ (2010) (slip op., at 14). An ineffective-assistance
claim can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial, and so the
Strickland standard must be applied with scrupulous care,
lest “intrusive post-trial inquiry” threaten the integrity of the
very adversary process the right to counsel is meant to serve.
Strickland, 466 U. S., at 689–690. Even under
de
novo review, the standard for judging counsel’s representation
is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials
outside the record, and interacted with the client, with opposing
counsel, and with the judge. It is “all too tempting” to
“second-guess counsel’s assistance after conviction or adverse
sentence.”
Id., at 689; see also
Bell v.
Cone,
535
U. S. 685, 702 (2002);
Lockhart v.
Fretwell,
506 U. S. 364,
372 (1993). The question is whether an attorney’s representation
amounted to incompetence under “prevailing professional norms,” not
whether it deviated from best practices or most common custom.
Strickland, 466 U. S., at 690.
Establishing that a state court’s application
of
Strickland was unreasonable under §2254(d) is all the
more difficult. The standards created by
Strickland and
§2254(d) are both “highly deferential,”
id., at 689;
Lindh v.
Murphy,
521 U. S. 320, 333, n. 7
(1997), and when the two apply in tandem, review is “doubly” so,
Knowles, 556 U. S., at ___ (slip op., at 11). The
Strickland standard is a general one, so the range of
reasonable applications is substantial. 556 U. S., at ___ (slip
op., at 11)
. Federal habeas courts must guard against the
danger of equating unreasonableness under
Strickland with
unreasonableness under §2254(d). When §2254(d) applies, the
question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel
satisfied
Strickland’s deferential standard.
A
With respect to defense counsel’s
performance, the Court of Appeals held that because Richter’s
attorney had not consulted forensic blood experts or introduced
expert evidence, the California Supreme Court could not reasonably
have concluded counsel provided adequate representation. This
conclusion was erroneous.
1
The Court of Appeals first held
that Richter’s attorney rendered constitutionally deficient service
because he did not consult blood evidence experts in developing the
basic strategy for Richter’s defense or offer their testimony as
part of the principal case for the defense.
Strickland,
however, permits counsel to “make a reasonable decision that makes
particular investigations unnecessary.” 466 U. S., at 691. It was
at least arguable that a reasonable attorney could decide to forgo
inquiry into the blood evidence in the circumstances here.
Criminal cases will arise where
the only reasonable and available defense strategy requires
consultation with experts or introduction of expert evidence,
whether pretrial, at trial, or both. There are, however, “countless
ways to provide effective assistance in any given case. Even the
best criminal defense attorneys would not defend a particular
client in the same way.”
Id., at 689. Rare are the
situations in which the “wide latitude counsel must have in making
tactical decisions” will be limited to any one technique or
approach.
Ibid. It can be assumed that in some cases
counsel would be deemed ineffective for failing to consult or rely
on experts, but even that formulation is sufficiently general that
state courts would have wide latitude in applying it. Here it would
be well within the bounds of a reasonable judicial determination
for the state court to conclude that defense counsel could follow a
strategy that did not require the use of experts regarding the pool
in the doorway to Johnson’s bedroom.
From the perspective of Richter’s defense
counsel when he was preparing Richter’s defense, there were any
number of hypothetical experts—specialists in psychiatry,
psychology, ballistics, fingerprints, tire treads, physiology, or
numerous other disciplines and subdisciplines—whose insight might
possibly have been useful. An attorney can avoid activities that
appear “distractive from more important duties.”
Bobby v.
Van Hook, 558 U. S. ___, ___ (2009)
(per curiam)
(slip op., at 8). Counsel was entitled to formulate a strategy that
was reasonable at the time and to balance limited resources in
accord with effective trial tactics and strategies. See
Knowles,
supra, at ___ (slip op., at 14–15);
Rompilla v.
Beard,
545 U. S. 374, 383
(2005);
Wiggins v.
Smith,
539 U. S. 510, 525
(2003);
Strickland, 466 U. S., at 699.
In concluding otherwise the Court of Appeals
failed to “reconstruct the circumstances of counsel’s challenged
conduct” and “evaluate the conduct from counsel’s perspective at
the time.”
Id., at 689. In its view Klein’s location was
“the single most critical issue in the case” given the differing
theories of the prosecution and the defense, and the source of the
blood in the doorway was therefore of central concern. 578
F. 3d, at 953–954. But it was far from a necessary conclusion
that this was evident at the time of the trial. There were many
factual differences between prosecution and defense versions of the
events on the night of the shootings. It is only because forensic
evidence has emerged concerning the source of the blood pool that
the issue could with any plausibility be said to stand apart.
Reliance on “the harsh light of hindsight” to cast doubt on a trial
that took place now more than 15 years ago is precisely what
Strickland and AEDPA seek to prevent.
Cone, 535
U. S., at 702; see also
Lockhart, 506 U. S., at 372.
Even if it had been apparent that expert blood
testimony could support Richter’s defense, it would be reasonable
to conclude that a competent attorney might elect not to use it.
The Court of Appeals opinion for the en banc majority rests in
large part on a hypothesis that reasonably could have been
rejected. The hypothesis is that without jeopardizing Richter’s
defense, an expert could have testified that the blood in Johnson’s
doorway could not have come from Johnson and could have come from
Klein, thus suggesting that Richter’s version of the shooting was
correct and Johnson’s a fabrication. This theory overlooks the fact
that concentrating on the blood pool carried its own serious risks.
If serological analysis or other forensic evidence demonstrated
that the blood came from Johnson alone, Richter’s story would be
exposed as an invention. An attorney need not pursue an
investigation that would be fruitless, much less one that might be
harmful to the defense.
Strickland,
supra, at
691. Here Richter’s attorney had reason to question the truth of
his client’s account, given, for instance, Richter’s initial denial
of involvement and the subsequent production of Johnson’s missing
pistol.
It would have been altogether reasonable to
conclude that this concern justified the course Richter’s counsel
pursued. Indeed, the Court of Appeals recognized this risk insofar
as it pertained to the suggestion that counsel should have had the
blood evidence tested. 578 F. 3d, at 956, n. 9. But the court
failed to recognize that making a central issue out of blood
evidence would have increased the likelihood of the prosecution’s
producing its own evidence on the blood pool’s origins and
composition; and once matters proceeded on this course, there was a
serious risk that expert evidence could destroy Richter’s case.
Even apart from this danger, there was the possibility that expert
testimony could shift attention to esoteric matters of forensic
science, distract the jury from whether Johnson was telling the
truth, or transform the case into a battle of the experts. Accord,
Bonin v.
Calderon, 59 F. 3d 815, 836 (CA9
1995).
True, it appears that defense counsel’s
opening statement itself inspired the prosecution to introduce
expert forensic evidence. But the prosecution’s evidence may well
have been weakened by the fact that it was assembled late in the
process; and in any event the prosecution’s response shows merely
that the defense strategy did not work out as well as counsel had
hoped, not that counsel was incompetent.
To support a defense argument that the
prosecution has not proved its case it sometimes is better to try
to cast pervasive suspicion of doubt than to strive to prove a
certainty that exonerates. All that happened here is that counsel
pursued a course that conformed to the first option. If this case
presented a
de novo review of
Strickland, the
foregoing might well suffice to reject the claim of inadequate
counsel, but that is an unnecessary step. The Court of Appeals must
be reversed if there was a reasonable justification for the state
court’s decision. In light of the record here there was no basis to
rule that the state court’s determination was unreasonable.
The Court of Appeals erred in dismissing
strategic considerations like these as an inaccurate account of
counsel’s actual thinking. Although courts may not indulge
“
post hoc rationalization” for counsel’s decisionmaking
that contradicts the available evidence of counsel’s actions,
Wiggins, 539 U. S., at 526–527, neither may they insist
counsel confirm every aspect of the strategic basis for his or her
actions. There is a “strong presumption” that counsel’s attention
to certain issues to the exclusion of others reflects trial tactics
rather than “sheer neglect.”
Yarborough v.
Gentry,
540
U. S. 1, 8 (2003)
(per curiam). After an adverse
verdict at trial even the most experienced counsel may find it
difficult to resist asking whether a different strategy might have
been better, and, in the course of that reflection, to magnify
their own responsibility for an unfavorable outcome.
Strickland, however, calls for an inquiry into the
objective reasonableness of counsel’s performance, not counsel’s
subjective state of mind. 466 U. S., at 688.
2
The Court of Appeals also found
that Richter’s attorney was constitutionally deficient because he
had not expected the prosecution to offer expert testimony and
therefore was unable to offer expert testimony of his own in
response.
The Court of Appeals erred in
suggesting counsel had to be prepared for “any contingency,” 578
F. 3d, at 946 (internal quotation marks omitted).
Strickland does not guarantee perfect representation, only
a “ ‘reasonably competent attorney.’ ” 466 U. S., at 687
(quoting
McMann v.
Richardson,
397 U. S. 759, 770
(1970)); see also
Gentry,
supra, at 7.
Representation is constitutionally ineffective only if it “so
undermined the proper functioning of the adversarial process” that
the defendant was denied a fair trial.
Strickland,
supra, at 686. Just as there is no expectation that
competent counsel will be a flawless strategist or tactician, an
attorney may not be faulted for a reasonable miscalculation or lack
of foresight or for failing to prepare for what appear to be remote
possibilities.
Here, Richter’s attorney was mistaken in
thinking the prosecution would not present forensic testimony. But
the prosecution itself did not expect to make that presenta- tion
and had made no preparations for doing so on the eve of trial. For
this reason alone, it is at least debatable whether counsel’s error
was so fundamental as to call the fairness of the trial into
doubt.
Even if counsel should have foreseen that the
prosecution would offer expert evidence, Richter would still need
to show it was indisputable that
Strickland required his
attorney to act upon that knowledge. Attempting to establish this,
the Court of Appeals held that defense counsel should have offered
expert testimony to rebut the evidence from the prosecution. But
Strickland does not enact Newton’s third law for the
presentation of evidence, requiring for every prosecution expert an
equal and opposite expert from the defense.
In many instances cross-examination will be
sufficient to expose defects in an expert’s presentation. When
defense counsel does not have a solid case, the best strategy can
be to say that there is too much doubt about the State’s theory for
a jury to convict. And while in some instances “even an isolated
error” can support an ineffective-assistance claim if it is
“sufficiently egregious and prejudicial,”
Murray v.
Carrier,
477 U. S. 478, 496
(1986), it is difficult to establish ineffective assistance when
counsel’s overall performance indicates active and capable
advocacy. Here Richter’s attorney represented him with vigor and
conducted a skillful cross-examination. As noted, defense counsel
elicited concessions from the State’s experts and was able to draw
attention to weaknesses in their conclusions stemming from the fact
that their analyses were conducted long after investigators had
left the crime scene. For all of these reasons, it would have been
reasonable to find that Richter had not shown his attorney was
deficient under
Strickland.
B
The Court of Appeals further
concluded that Richter had established prejudice under
Strickland given the expert evidence his attorney could
have introduced. It held that the California Supreme Court would
have been unreasonable in concluding otherwise. This too was
error.
In assessing prejudice under
Strickland, the question is not whether a court can be
certain counsel’s performance had no effect on the outcome or
whether it is possible a reasonable doubt might have been
established if counsel acted differently. See
Wong v.
Belmontes, 558 U. S. ___, ___ (2009)
(per curiam)
(slip op., at 13);
Strickland, 466 U. S., at 693. Instead,
Strickland asks whether it is “reasonably likely” the
result would have been different.
Id., at 696. This does
not require a showing that counsel’s actions “more likely than not
altered the outcome,” but the difference between
Strickland’s prejudice standard and a
more-probable-than-not standard is slight and matters “only in the
rarest case.”
Id., at 693, 697. The likelihood of a
different result must be substantial, not just conceivable.
Id., at 693.
It would not have been unreasonable for the
California Supreme Court to conclude Richter’s evidence of
prejudice fell short of this standard. His expert serology evidence
established nothing more than a theoretical possibility that, in
addition to blood of Johnson’s type, Klein’s blood may also have
been present in a blood sample taken near the bedroom doorway pool.
At trial, defense counsel extracted a concession along these lines
from the prosecution’s expert. The pathology expert’s claim about
the size of the blood pool could be taken to suggest only that the
wounded and hysterical Johnson erred in his assessment of time or
that he bled more profusely than estimated. And the analysis of the
purported blood pattern expert indicated no more than that Johnson
was not standing up when the blood pool formed.
It was also reasonable to find Richter had not
established prejudice given that he offered no evidence directly
challenging other conclusions reached by the prosecution’s experts.
For example, there was no dispute that the blood sample taken near
the doorway pool matched Johnson’s blood type. The California
Supreme Court reasonably could have concluded that testimony about
patterns that form when blood drips to the floor or about the rate
at which Johnson was bleeding did not undermine the results of
chemical tests indicating blood type. Nor did Richter provide any
direct refutation of the State’s expert testimony describing how
blood spatter near the couch suggested a shooting in the living
room and how the blood patterns on Klein’s face were inconsistent
with Richter’s theory that Klein had been killed in the bedroom
doorway and moved to the couch.
There was, furthermore, sufficient
conventional circumstantial evidence pointing to Richter’s guilt.
It included the gun safe and ammunition found at his home; his
flight from the crime scene; his disposal of the .32-caliber gun
and of Johnson’s pistol; his shifting story concerning his
involvement; the disappearance prior to the arrival of the law
enforcement officers of the .22-caliber weapon that killed Klein;
the improbability of Branscombe’s not being wounded in the shootout
that resulted in a combined four bullet wounds to Johnson and
Klein; and the difficulties the intoxicated and twice-shot Johnson
would have had in carrying the body of a dying man from bedroom
doorway to living room couch, not to mention the lack of any
obvious reason for him to do so. There was ample basis for the
California Supreme Court to think any real possibility of Richter’s
being acquitted was eclipsed by the remaining evidence pointing to
guilt.
* * *
The California Supreme Court’s
decision on the merits of Richter’s
Strickland claim
required more deference than it received. Richter was not entitled
to the relief ordered by the Court of Appeals. The judgment is
reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Kagan took no part in the
consideration or decision of this case.
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